Citation Nr: 1046899
Decision Date: 12/15/10 Archive Date: 12/22/10
DOCKET NO. 10-41 546 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to a one-time payment from the Filipino Veterans
Equity Compensation Fund.
ATTORNEY FOR THE BOARD
Debbie A. Breitbeil, Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Appellant alleges that he was in the Commonwealth Army of the
Philippines in service of the Armed Forces of the United States
(USAFFE), including the recognized guerrillas in the service of
the Armed Forces of the United States.
This matter is before the Board of Veterans' Appeals (Board) on
appeal of an administrative decision in May 2009 of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines
FINDING OF FACT
The National Personnel Records Center and U.S. Army Personnel
Center have certified that the Appellant had no service as a
member of the Philippine Commonwealth Army, including the
recognized guerrillas in the service of the Armed Forces of the
United States.
CONCLUSION OF LAW
The Appellant does not have recognized active military service as
required to establish eligibility for Filipino Veterans Equity
Compensation Fund benefits. 38 U.S.C.A. § 501(a) (West 2002 &
West Supp. 2010); American Recovery and Reinvestment Act § 1002,
Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203
(2010).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented in part at 38 C.F.R § 3.159, amended VA's duties to
notify and to assist a claimant in developing information and
evidence necessary to substantiate a claim.
The U. S. Court of Appeals for Veterans Claims has held that the
statutory and regulatory provisions pertaining to VA's duty to
notify and to assist do not apply to a claim if resolution of the
claim is based on statutory interpretation, rather than
consideration of the factual evidence. Dela Cruz v. Principi, 15
Vet. App. 143, 149 (2001). As the law is dispositive in the
instant claim, the VCAA is not applicable.
REASONS AND BASES FOR FINDING AND CONCLUSION
Governing Law
The Appellant seeks a one-time payment from the Filipino Veterans
Equity Compensation Fund under the American Recovery and
Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002
(enacted February 17, 2009) (to be codified in Title 38 of the
United States Code: Veterans' Benefits). Payments for eligible
persons will be either in the amount of $9,000 for non-United
States citizens or $15,000 for United States citizens. The
Secretary of VA is to administer the fund consistent with
applicable provisions of the Title 38 of the United States Code.
Under Section 1002, an eligible person is any person: (1) who
served before July 1, 1946, in the organized military forces of
the Government of the Commonwealth of the Philippines, while such
forces were in the service of the Armed Forces of the United
States pursuant to the military order of the President dated July
26, 1941, including among such military forces organized
guerrilla forces under commanders appointed, designated, or
subsequently recognized by the Commander in Chief, Southwest
Pacific Area, or other competent authority in the Army of the
United States;
or (2) any person who served in the Philippine Scouts under
section 14 of the Armed Forces Voluntary Recruitment Act of 1945
(59 Stat. 538); and (3) any eligible person was discharged or
released from service under conditions other than dishonorable.
See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain
Philippine service).
For the purpose of establishing evidence of service, the
Department of Veterans Affairs may accept evidence of service
submitted by a claimant, such as a DD Form 214, Certificate of
Release or Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department if the evidence meets the following conditions: (1)
the evidence is a document issued by the service department; (2)
the document contains needed information as to length, time and
character of service; and (3) in the opinion of the Department of
Veterans Affairs the document is genuine and the information
contained in it is accurate. 38 C.F.R. § 3.203(a).
When the claimant does not submit evidence of service or the
evidence submitted does not meet the stated requirements, the
Department of Veterans Affairs will request verification of
service from the service department. 38 C.F.R. § 3.203(c).
The findings of the U.S. service department verifying a person's
service are binding on VA for the purpose of establishing service
in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530
(1992).
Facts and Analysis
The Appellant alleges qualifying service in the Commonwealth Army
of the Philippines in service of the Armed Forces of the United
States (USAFFE), including the recognized guerilla forces in
service of the Armed Forces of the United States.
As proof of qualifying service, the Appellant has submitted
numerous documents, including the following: Certification from
the Commonwealth Army of the Philippines, dated in February 1946;
Certificate from the Philippine Army Training Center, dated in
February 1946; Certificate from the Office of the Mayor, Province
of Leyte, dated in December 1947; a copy of a service medal,
denoting the Asiatic Pacific Campaign; a statement of military
pay and allowances issued by the Philippine Army, dated in
October 1947; Certification from the Philippine Veterans
Administration, dated in May 1958 and January 1966; an
acknowledgement certificate from the Bureau of Treasury, Manila,
dated in July 1957; Certificate from the Office of the Adjutant
General, Armed Forces of the Philippines, dated in May 1956;
copies of various identification cards, showing a photo of the
Appellant; a copy of a passbook with the Philippine Veterans
Bank; Application for Settlement of Claims of Filipino Veterans
under Republic Act No. 1889, dated in December 1958; Application
for Old Age Pension with the Philippine Veterans Affairs Office,
dated in July 1990; a social service information sheet from an
outreach program at the Veterans Memorial Medical Center, dated
in April 1979; and numerous affidavits executed by the Appellant
and other individuals, asserting that they knew of the
Appellant's service and had served with him.
As none of the documents submitted by the Appellant was issued by
a U.S. service department, the RO relied on verification of
service from the National Personnel Records Center, which in
April 2010 and in June 2010, certified that the Appellant had no
service as a member of the Philippine Commonwealth Army,
including the recognized guerillas, in the service of the United
State Armed Forces. In relation to an earlier claim for
different benefits, the U.S. Army Reserve Personnel Center in
March 1989 likewise certified that the Appellant had no service
as a member of the Philippine Commonwealth Army, including the
recognized guerillas, in the service of the United State Armed
Forces.
As the affidavits of the Veteran and other individuals, as well
as various certificates relevant to military service, fail to
satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof
of service, as the records are not official documents of the
appropriate United States service department, the documents may
not be accepted by the Board as verification of service for the
purpose of determining eligibility for VA benefits, including the
one-time payment from the Filipino Veterans Equity Compensation
Fund.
Further, the Appellant has provided no further evidence that
would warrant a request for recertification from the service
department. See Sarmiento v. Brown, 7 Vet. App. 80 (1994)
(recertification with evidence of erroneous spelling of name);
Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008)
(recertification when there is newly received relevant evidence
since the negative certification).
As the U.S. service department, through the National Personnel
Records Center and the U.S. Army Reserve Personnel Center,
certified that the Appellant did not serve as a member of the
Philippine Commonwealth Army, including in the recognized
guerillas, in the service of the United State Armed Forces, the
finding is binding on VA for the purpose of establishing service
in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530
(1992).
Therefore, the Board concludes that the Appellant is not eligible
for, that is, he is not legally entitled to the Filipino Veterans
Equity Compensation Fund benefit under the American Recovery and
Reinvestment Act § 1002, Pub. L. No. 111-5.
As the law is dispositive, the claim must be denied because of
the lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
(The Order follows on the next page.).
ORDER
The Appellant is not eligible for benefits from the Filipino
Veterans Equity Compensation Fund and the appeal is denied.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs